What does replacing Jeff Sessions as Attorney General mean for marijuana advocates? The short answer is not much. The longer answer is bit more complicated.
First, let’s acknowledge that voters across the United States affirmed the trend we have been seeing towards the normalization of cannabis. In Michigan, legalized cannabis for recreational use was approved by voters with an 8% margin. Utah and Missouri voted to legalize medical marijuana by 6% and 32% margins. The one place that rejected cannabis was in North Dakota, which had a proposal for recreational marijuana. It failed by a 19% margin, however, it should be noted that North Dakota voters approved medical marijuana just 2 years ago. Overall, this election day was positive for marijuana advocates with more success than failure at the polls.
Then came the news that Jeff Sessions had been asked to resign as Attorney General by President Trump. Cannabis stocks jumped on the news as some investors viewed it as a positive. While it is true that as AG Mr. Sessions took some action against marijuana, it was mostly impotent. The biggest news on the subject during Mr. Sessions’s tenure occurred when he repealed the Cole Memo, a document that acknowledged the Justice Department’s limited resources and instructed US Attorneys avoid prosecution in areas where marijuana was legal in some form. As a practical matter, it did very little. First, it is illegal for the justice department to spend any money enforcing the federal ban on medical marijuana. This is due to an amendment that has been attached to the budget for the past few years. The Rohrabacher-Blumenauer Amendment specifically prohibits the Justice Department from spending money to enforce the medical marijuana ban in areas where it is legal at the state level. Second, in his memo rescinding the Cole Memo, Mr. Sessions acknowledged the limited resources of the Justice Department and instructed US Attorneys to prioritize their resources according to the US Attorneys’ Manual, which acknowledges relative risks from crime and violence. Without a specific directive to crack down on marijuana to the detriment of other enforcement, the priority has remained addressing more serious offenses with limited resources. There are more important activities for prosecutors to pursue than arresting those individuals involved in the orderly distribution of marijuana where states have made it legal.
Which brings us to our original question. What does replacing Jeff Sessions as Attorney General mean for marijuana in the U.S. The election showed us that the trend towards legalization remains intact with voters supporting recreational and medical marijuana in Red and Blue states. As AG for the past 21 months, Jeff Sessions did what he could to limit marijuana. It was all show and no substance. Anything more would have required active pressure from Mr. Sessions on US Attorneys to pursue marijuana at the expense of enforcement on heroin, opioids, meth, etc. Despite his limited actions on marijuana, he still faced significant opposition from both sides of the aisle. Mr. Sessions was pretty much the worst possible AG for advocates in the current political landscape and he had almost no impact on the long-term trends towards legalization in the U.S. Given Mr. Sessions limited impact, replacing him doesn't mean very much.
Now we must look to the new AG and ask what happens next? The apparent answer is, again, not much from the AG perspective. A strong opponent of cannabis was just in the position and he was unable to have an impact. The new AG will likely be less of an opponent for cannabis simply because it is hard to find someone who has stronger opposition than Mr. Sessions. More importantly, it appears that the new AG will be more focused on reigning in Robert Mueller’s Russia investigation. Whatever you feel about that subject, marijuana won’t be a priority.
At a higher level, President Trump has stated that he supports medical marijuana and has expressed support for a bi-partisan bill introduced by Senators Warren (D-MA) and Gardner (R-CO) that would amend the Controlled Substances Act to exempt state-level marijuana activity from prohibition. Such a bill would change the legal landscape for cannabis. If it is legal at the state level, the Federal government would give its blessing. That would be an appealing outcome for advocates of marijuana as well as those of states’ rights. At the same time, that bill should open the door to normalized banking and access to capital markets as soon as there is some proper understanding of the provisions.
The billion-dollar question as we look forward isn’t if the new AG is going to crack down on marijuana. He or she probably won’t want or be able to do that. The real question is if the politics of cannabis have progressed to the point where change can happen at the federal level. President Trump and Republicans in the Senate should move forward with Democrats in the House to pass a bill that will make marijuana a state issue. They should work to end the federal prohibition and protect state choices concerning medical and recreational marijuana. It appears this is one area that there may be common ground that both sides can agree on.
